Where Are We? - GPS Declassified: From Smart Bombs to Smartphones - page 158

yers argued that using such tactics without a search warrant are illegal searches
and seizures. As cases and appeals involving gps tracking moved through the
judicial system, local courts often sided with police, but state and federal courts
differed on the need for a warrant. 83
In 2011 the first test case involving warrantless gps tracking, United States
v. Jones , reached the Supreme Court. 84 fbi agents and metro police had placed
a gps tracker on Washington dc nightclub owner Antoine Jones's Jeep Chero-
kee and recorded his movements for twenty-eight days while gathering evi-
dence to convict him in a drug-traicking investigation. During the trial, a
government lawyer characterized federal investigations that use gps tracking
as numbering “in the low thousands annually.” 85 The aggregate number of
investigations involving gps among all levels of law enforcement across the
nation prior to the ruling is unknown, but the decision effectively ended police
use of gps vehicle tracking without a warrant. On January 23, 2012, the justices
unanimously ruled that police in the case had violated the Constitution. Jus-
tice Antonin Scalia, delivering the main opinion of the court, observed, “We
have no doubt that such a physical intrusion would have been considered a
'search' within the meaning of the Fourth Amendment when it was adopted.” 86
However, the justices split over the rationale for the ruling. Chief Justice John
G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas, and Sonia
Sotomayor agreed with Scalia that the case centered on the physical intrusion
created by placing the device on the vehicle. Justice Samuel A. Alito Jr. observed
that modern technologies no longer require the traditional “physical trespass”
the authors of the Fourth Amendment had in mind. He contended that the
issue at stake was the defendant's “reasonable expectation of privacy,” a more
recent but well-established interpretation of the Fourth Amendment growing
out of wiretapping and eavesdropping cases. Justices Ruth Bader Ginsburg,
Stephen G. Breyer, and Elena Kagan joined Alito in this view.
Justice Sotomayor, in a concurring opinion, made clear that she agreed with
Alito's reasoning, although she was content to dispose of United States v. Jones
on the narrower grounds Scalia proposed. She suggested that given the vol-
umes of information people share today with retailers, phone companies, and
other businesses, protecting societal expectations of privacy would be possible
“only if our Fourth Amendment jurisprudence ceases to treat secrecy as a pre-
requisite for privacy.” Police have not traditionally needed a warrant to obtain
information voluntarily shared with third parties.
While the case clarified police use of gps tracking, the law remains unsettled